The Court established that a petition under Order IX Rule 13 C.P.C. is maintainable without a formal order setting the defendant ex parte, and the nature of the judgment and decree is determinative in deciding the maintainability.

JUDGMENT

K.R. Mohapatra, J. - This matter is taken up through video conferencing mode.

2. Heard Mr. G.N. Mishra, learned counsel for the Petitioner. None appears for the Opposite Parties in spite of valid service of notice as per office note dated 07.01.2021.

3. The Petitioner in this writ petition seeks to assail the order dated 17.08. 2019 (Annexure-2) passed by learned Addl. District JudgeII, Baripada in FAO No. 1 of 2016, whereby she confirmed the order dated 13.10.2015 (Annexure-1) passed by learned Civil Judge (Senior Division), Baripada in CMA No. 115 of 2014 (arising out of C.S. No. 304 of 2007) dismissing an application under Order IX Rule 13 C.P.C. filed by him.

4. Mr. Mishra, learned counsel for the Petitioner submits that the Petitioner as Defendant No.1 could not appear on the date of hearing of the suit due to his illness for which the suit for partition proceeded in his absence. Ex parte judgment was also passed on the very same day, i.e. on 26th June, 2013 and the decree was passed on 5th July, 2013 by learned Civil Judge (Senior Division), Baripada. The Petitioner thereafter filed CMA No. 115 of 2014 under Order IX Rule 13 C.P.C. for setting aside the ex parte decree, which was rejected on the ground that since the Petitioner was never set ex parte, the provision of Order IX Rule 13 C.P.C. is not applicable. Learned trial court further held that the medical certificate filed by the Petitioner in support of his illness was not proved by the treating physician. Accordingly, she dismissed the petition under Order IX Rule 13 C.P.C. vide judgment dated 13th October, 2015. Assailing the same, the Petitioner preferred FAO No. 1 of 2016, which was also dismissed vide order dated 17th August, 2019 holding that since the Petitioner was never set ex parte, the question of exercising power under Order IX Rule 13 C.P.C. does not arise.

5. Mr. Mishra, learned counsel for the Petitioner further submits that since the judgment in C.S. No. 304 of 2007 was passed ex parte against the Petitioner, the petition under Order IX Rule 13 C.P.C. is maintainable and in order to maintain a petition under Order IX Rule 13 C.P.C., a specific order setting the Petitioner ex parte is not required to be passed. In support of his case, he relied upon the decision of this Court in the case of Murali Patra v- Sunaram Singh,1991 72 CLT 244, wherein it has been held at paragraph-3 as follows:

"3. As indicated, at the outset the scope and ambit of Order 17, Rules 2 and 3 fall for consideration in this case. If on a date fixed one of the parties to the suit remains absent and for that party no evidence has been led up to that date, the Court has no option but to dispose of the matter in accordance with Order 17, Rule 2 in any one of the modes prescribed under Order 9 of the Code. After the amendment in 1976 to Order 17, Rules 2 and 3, in a case where the party is absent, the only course available is to proceed under Rule 2 in the manner prescribed in Order 17, Rule 3(b). Therefore, in the absence of defendant, the Court had no option but to proceed under Rule 2. The language of Rule 2 as stands presently clearly lays down that if any one of the parties fails to appear, the Court has to proceed to dispose of the suit in one of the modes prescribed under Order 9. The explanation to Rule 2 gives a discretion to the Court to proceed under Rule 3, even if a party is absent; but the same discretion is conditional, and is applicable in a case where a party which is absent has led some evidence or part of its evidence. In such a case the Court has to proceed to dispose of the suit on merits in one of the modes under Order 9. This view of mine gets countenance from a decision of the Supreme Court reported in Prakash Chandar Manchanda v. Janki Manchanda, (1986) 4 SCC 699: A.I.R. 1987 S.C. 42 . That being the position, the learned Munsif was not justified in holding that the suit was disposed of in terms of Explanation to Rules 2, and Rule 3 of Order 17, and/or tha